www.elsblog.org - Bringing Data and Methods to Our Legal Madness

08 December 2007

A minor dustup occurred this week in the world of video game
politics, one that implicates public thinking on First Amendment issues. In a
press release, public relations firm Hill & Knowlton (H&K) reported:

“Sixty percent of US consumers polled agree that the
government should regulate the sale of violent or mature content video
games while a slim majority (51%) agrees
that the government should regulate mature content itself.” (emphasis
added).

The Entertainment Software Association (ESA), which opposes
government regulation of video games, responded to H&K’s report with some
unusually harsh words. There may be some bad blood between the two organizations based on
prior dealings -- the ESA’s criticisms are here [UPDATE: H&K responds here and here] -- but the ESA didn’t discuss
one significant qualification to the finding of 51% support for content
regulation. A comparison of the results for two of H&K’s questions
suggests there is less public enthusiasm for content regulation in this survey than the reported
51%. Here are the two relevant questions:

Q11. Do you think the government should regulate violent
content in video games?

Q8. If a person running for office were to take a stand on
the regulation of violent or mature content in video games, to what extent
would that impact your vote for him or her?*

07 December 2007

Earlier this year, the Carnegie Foundation for the Advancement of Teaching published Educating Lawyers. Drawing upon extensive field work at 16 law schools, the book is a carefully researched critique of U.S. legal education. Although I agree with many of the assessments made in the book (now commonly referred to as the Carnegie Report), it pains me to write that I worry about its long-term impact. In the context of legal education, good--or even brilliant--ideas are not enough to effect change.

Rather, major systemic change requires, at a minimum:

A careful assessment of the institutional incentives that have created and perpetuate the current system;

Creative strategies for breaking down or subverting those institutional forces in a way that produces a greater good.

Unfortunately, the Carnegie Report touches on #1 only briefly; and #2 is entirely absence. I am hoping that the Carnegie Center working group, which is being formed to help execute the study, can address these issues. To that end, I am writing this post. [Disclosure: via my law school, I am a member of the working group.]Four Datapoints

Ironically, a presentation at the annual ABA meeting (August 2007) by Lee Shulman, president of the Carnegie Foundation and one of the authors of the Educating Lawyers, was the event that crystallized my thinking. In introducing the book, Shulman discussed the distinguished history of the Carnegie Foundation. This included reference to four of the Center's earlier studies:

The Flexner Report (1910), which was major catalyst for the current system of medical education;

The Redlich Report (1914), which was based on visits to 10 law schools and presented a deeply ambivalent assessment of the Langdellian case method;

The Reed Reports I (1921) and II (1928), which were based on visits to 130+ schools over an eight year period and proposed that legal educators abandon the myth of a homogeneous bar, develop pedagogy according to different student populations, and otherwise reign in the case method;

The Packer & Erhlich Report (1972 ) [aka New Directions in Legal Education], which decried the homogeneity of legal education both in purpose and structure and argued for more diverse curricula to bridge the gap between theory and practice.

To summarize, there is one data point (the Flexner Report) suggesting that a Carnegie Foundation report can have a revolutionary effect on higher education, and, in the law school context, three examples of expert, informed advice falling on deaf ears. As Shulman remarked, the Redlich/Reed Reports were "ignored with enthusiasm" and Packer & Ehrlich [professor and dean at Stanford Law] were "even more ignored."

Can the Carnegie Report be a Significant Catalyst for Change?

If the Carnegie Report (2007) is going to have any impact, we need to make sense of these four data points. What distinguishes the success of the Flexner Report from the footnote-in-history status of Redlich, Reed, and Packer-Ehrlich?

To my mind, the answer is simple but devilishly hard to replicate. Abraham Flexner chronicled the horrific abuse of the proprietary medical schools and deftly used that information through newspaper reports to shape public opinion and effectively close down medical schools. At the same time, he masterfully organized philanthropic monies to build the current university-based clinical and research model of medical education. In short, Flexner had a vision, but he also had an impressive arsenal of carrots and sticks.

Obviously, there is no set of facts I can imagine that threatens the survive of today's elite law schools. Even if they charge a lot of money and are resistant to changes in the way they educate lawyers, their graduates are virtually guaranteed high pay/high prestige jobs. Huge endowments further insulate elite legal educators for market forces, thus freeing them to focus on things they care about, such as scholarship. Because the legal academy is dominated by graduates of elite institutions, as a group, we have a hard time convincing ourselves that there is a better model out there based on educational theory or learning outcomes.

One short section of the Carnegie Report (pp. 89-91), entitled "Narrow Perspective: An Obstacle to Change," discusses, in remarkably frank terms, some of these deep-seated institutional issues:

In our study, we discovered that faculty attention to the overall purposes and effects of a school's educational efforts is surprisingly rare, partly due ... to the culture of legal education, which is shaped by the practices and attitudes of the elite schools ... .

Most faculty are drawn from a very small number of leading academic institutions, from among lawyers who have taken predictable career paths. Students at the top schools who are identified after their first year as stars in analytical reasoning receive extensive apprentice-like training as law review editors ... . They then go on to receive more hands-on mentoring as law clerks for appellate judges before taking up such positions as appellate advocate, legal scholar and teacher ... . Drawing law school faculty from this pool has ensured great uniformity in career path and outlook, especially in matters of faculty promotion and curriculum, introducing little diversity of experience into the faculty perspectives. ...

[Over the last 60 years, a pat formula took hold.] The ambitious school would recruit a highly credentialed faculty, preferably from the old, elite institutions, increase the library's holdings, induce prestigious figures to publish in the law review, and work hard to recruit well-prepared students, as measured by the LSAT. By the 1960s, for example, a number of law schools at state universities ... had advanced their status in this way. [For corroborative evidence of this point, see this post on the first law school rankings.] After that, the competitive "gold standard" was set for the field of legal education.

The standard is so securely established that there are very few leverage points from which to effect change in the model.

This passage, in a nutshell, reveals the Carnegie Report's Achilles' heel. Sure, the book contains some great ideas, but as a group, law professors are not listening. More troubling, the book has no strategy for getting their attention.

My own hope is that the certain aspects of the Carnegie Report can be used as a life raft by lower ranked schools trying to distinguish themselves--or, frankly, survive--in an era of rapidly rising tuition, burgeoning ABA-accredited law schools (20 more since 1990!), and relatively stagnant starting salaries, at least outside the large law firms. When a law school's graduates dramatically outperform their input credentials on things like bar passage or employment outcomes, or when its esprit de corps becomes palpable among both students and alumni, the market will notice and the innovators will be rewarded. Further, lower-ranked law schools that try to emulate Harvard and Yale will get clobbered.

I realize that a non-elite bottom-up strategy is not very sexy. But to my mind, it has a fighting chance of being successful. Moreover, I know a few schools that are trying to make it a reality.

05 December 2007

The ELS "movement" has turned an important corner. Over the last year, Joe Doherty (Empirical Research Group at UCLA Law) has organized an impressive online bibliography of empirical legal studies scholarship. Per this background narrative, a lot of the heavy lifting was done by the law libraries at UCLA and Cornell (thanks to the encouragement of Ted Eisenberg). Here are the key features:

Scope. Includes includes 732 articles from over 80 journals indexed from July 2005 to July 2007;

Searchability. By author, title, year, or subject area, alone or in combination;

Output. In general of ISA format [the latter makes it easy to import into another software application] and includes author's affiliation;

Access. The entire database is available on request [wow, quite generous!].

According to Joe, the UCLA-Cornell nexus is committed to updating it indefinitely. They are, however, looking for volunteers who are willing to help backfill to 2000 or before. Kudos to Joe and Ted for getting this important initiative off the ground.

04 December 2007

I stumbled across what could be a promising archival project involving the California appellate courts:

In 2006, the California Appellate Court Legacy Project was
undertaken to interview all retired justices in the state, as well as active
justices who may be nearing retirement. Overseen by the Appellate Court Legacy
Project Committee (chaired by Associate Justice Judith L. Haller of the Fourth
Appellate District, Division One), interviews are videotaped or audiotaped and
conducted by interviewers selected from within the appellate branch. Ultimately
the tapes will be made available to judicial colleagues, historians, scholars,
law students, and members of the public. The resulting archive will be an
historical record of both the personal experiences of individual justices and
the evolution of the California appellate courts.

Unfortunately, I haven't found any information about the project's
current status or what types of questions the interviewers are asking the judges. Actually, I can't find much of anything about this project other than the statement above, which comes from the California Courts' website.